SORA’s registration obligations

A New York Criminal Lawyer said that, this is an appeal from a judgment of the Supreme Court, entered August 5, 2010 in Albany County, which, among other things, dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Division of Criminal Justice Services requiring petitioner to continue to register as a sex crime offender.

A New York Sex Crimes Lawyer said that, defendant was convicted in Suffolk County in 1997 of the crime of sodomy in the third degree; petitioner was required to register as a sex offender under the Sex Offender Registration Act and was subsequently adjudicated a risk level II sex offender. He thereafter relocated to Virginia where, based on his New York conviction, he was also required to register as a sex offender. In 2008, the Circuit Court for Fairfax County, Virginia granted petitioner’s petition for removal of his name from the Virginia sex crime offender registry.

Later that year, petitioner filed his annual New York sex offender registration forms with the Division of Criminal Justice Services under protest and requested to be removed from the New York registry. In response, the Division informed petitioner that he had a lifetime obligation to register under SORA. Upon the Division’s next request for his registration information in 2009, petitioner commenced this CPLR article 78 proceeding seeking, among other things, to annul the Division’s determination requiring him to continue to register as a sex offender as in excess of its statutory authority and in violation of various provisions of the US Constitution. Rejecting petitioner’s constitutional arguments and finding that the Division properly determined that his continued registration under SORA was required, Supreme Court dismissed the petition. Petitioner appealed.

A New York Criminal Lawyer said that, petitioner contends that the language of SORA and the legislative intent underlying the statutory scheme demonstrate that it is not to be applied to sex offenders who have left the state and, therefore, the Division lacked jurisdiction to require his continued registration.

The issue in this case is whether petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Division of Criminal Justice Services requiring petitioner to continue to register as a sex crime offender should be granted.

The court in deciding the case said that, when interpreting a statute, we attempt to effectuate the intent of the Legislature and the starting point for discerning such intent is the language of the statute. Furthermore, because SORA is remedial in nature, it should be construed broadly and liberally to effectuate its purpose. “And where, as here, ‘the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency'”. SORA requires that, for a risk level II sex offender such as petitioner, “the duration of registration and verification shall be annually for life”.

While there is a procedure under SORA by which a risk level II criminal sex offender may commence a proceeding to be removed from the requirements of registration, removal is unavailable until the sex offender has been registered for 30 years, and then only upon a finding that the offender’s “risk of repeat offense and threat to public safety is such that registration or verification is no longer necessary”. Otherwise, exemption from SORA’s registration obligations is permitted only upon appellate reversal of the sex offender’s conviction or a pardon by the Governor. “‘Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded'”. Moreover, while SORA expressly addresses an offender’s relocation to another state, it does not provide for his or her removal from the sex offender registry under such circumstances. Had the Legislature intended to require the Division to remove a sex offender from New York’s registry upon his or her relocation from this state, it would have so provided. Child pornography is often committed.

Contrary to petitioner’s contention, the court’s decision in the 2005 does not warrant a contrary conclusion. There, in rejecting the defendant’s argument that New York was required to adhere to his sex offender risk classification in Ohio the state in which the registerable conviction occurred in assessing his risk level under SORA, this Court stated that “the administrative manner in which a state chooses to exercise the registration requirements for a sex offender who moves into its jurisdiction falls squarely within the power of that state and is not governed by the procedures in effect in the state where the offender previously resided”. Thus, the case holds that New York law controls with respect to a sex crimes offender’s registration obligations within this state, and that the registration obligations, if any, imposed by another state are determined by the law of that state. The case does not stand for the proposition that a sex offender’s registration requirements can only be regulated by the state in which such offender resides.

Similarly, the purpose envisioned by SORA’s sponsors was, in part, to create “annual registration requirements and corresponding procedural guidelines to allow local law enforcement agencies and the state to monitor the whereabouts of sex offenders”. In our view, the statute’s dual purposes of monitoring sex offenders’ whereabouts and aiding law enforcement in prosecuting recidivist offenders would be frustrated if a sex offender’s registration obligations were to cease when he or she moves out of the state. Indeed, such an offender could simply leave and then return without re-registering, or relocate just outside of this state’s borders, thereby posing a continuing public safety threat to New York citizens situations which would effectively nullify the remedial objective of the statute. Only by continually monitoring a sex offender’s whereabouts for the duration of his or her registration requirement can these express purposes be effected. Thus, we hold that the establishment of a residence in another state does not relieve petitioner of his SORA registration obligations.

The court reject petitioner’s further assertion that requiring him to continue to register under SORA constitutes an extraterritorial application of the statute. Petitioner’s continuing registration obligations under SORA are the product of his commission, and resulting conviction, of a sex crime offense in New York while a resident of this state. As petitioner’s registration requirements under SORA were triggered by his conduct in New York, the statute as applied has no extraterritorial effect.

Petitioner also argues that simultaneously subjecting a sex offender to more than one state’s registration requirements violates the Full Faith and Credit Clause of the US Constitution. “The purpose of the Full Faith and Credit Clause is to avoid conflicts between states in adjudicating the same matters”. Such clause is not implicated where the issue decided by a court in a sister states is different from the issue being decided by a New York court. Here, New York and Virginia have each separately adjudicated the risk posed by petitioner to their respective citizens and imposed registration requirements upon petitioner pursuant to each state’s sex offender registration law. As neither state has attempted to adjudicate the same matter, the Full Faith and Credit Clause has not been violated.

Accordingly, the court held that, that the judgment is affirmed, without costs. The court has considered petitioner’s remaining contentions and finds them to be without merit.

The rule is SORA requires that, for a risk level II sex offender such as petitioner, “the duration of registration and verification shall be annually for life”.

If there has been a violation of this rule in a decided rape case, seek the help of a New York Sex Crime Attorney and that of New York Criminal Attorney at Stephen Bilkis and Associates. Call us now so that we can file the appropriate motion for your case.